Schwartz Reptile ABA 2016

ABA Spring 2016 National Legal Malpractice Conference

REPTILE BY THE TAIL:

REALITY, RECOGNITION AND REACTION

Edward P. Schwartz, Ph.D., M.S.L.

Jury Consultant

April 28, 2016

KEYS TO A PLAINTIFF VERDICT

A jury needs to work harder to return a plaintiff’s verdict than a defense verdict.

As few as one juror needs to say “no” once to prevent the plaintiff from prevailing.

As such, the plaintiff must provide the jury with:

• Motive

• Sympathy for the Plaintiff

• Anger towards the Defendant

• Desire to send a Message

• Perception of Social Injustice

• Self-interest

• Opportunity

• Jury Instructions

• Discretion/Ambiguity

• Compromise

KEYS TO A PLAINTIFF VERDICT

A jury needs to work harder to return a plaintiff’s verdict than a defense verdict.

As few as one juror needs to say “no” once to prevent the plaintiff from prevailing.

As such, the plaintiff must provide the jury with:

• Motive

• Sympathy for the Plaintiff

• Anger towards the Defendant

• Desire to send a Message

• Perception of Social Injustice

• Self-interest -- FEAR

• Opportunity

• Jury Instructions

• Discretion/Ambiguity – Conscience of the Community

• Compromise

ORIGINS OF THE REPTILE THEORY OF TRIAL

STRATEGY

Reptile: The 2009 Manual of The Plaintiffs’ Revolution, by David

Ball and Don Keenan.

• It is built upon research performed in the 1960s by neurologist

Paul MacLean, positing a theory that the brain is comprised of

three parts:

• the reptilian complex,

• the paleomammalian complex and the

• neomammalian complex.

• The reptilian complex includes the brain stem and the

cerebellum, the oldest part of the brain, which thrives on

survival. The reptilian brain maximizes “survival advantages”

and attempts to minimize “survival danger.”

GENERAL LESSONS OF THE REPTILE THEORY

• Scare the jury so as to activate instinctual part of the brain

• Emphasize danger

• Make case about public safety

• Connect jurors to plaintiff

• Reinforce the importance and reliability of first instincts

• Downplay the value of logic and cognition

• Experts confuse things

• Facts obscure truth

• Redefine jury’s role as protector of community

DEBUNKING THE REPTILE THEORY

• Reptile Brain controls immediate, autonomic fear reflexes.

BOO!

• Lawyers cannot generally terrify jurors during trial.

• Processing responses to danger actually occurs in several

parts of the brain, involving multiple levels of information

processing.

• Terror management theory is probably a better explanation for

why the REPTILE tactics work (Ernest Becker 1973).

Nonetheless, the specific strategic recommendations of the

Reptile Theory can be quite effective – only for reasons other

than those posited by the authors.

TAKING REPTILE STEPS

• Characterize alleged negligence as the violation of a safety rule – Find your

theme

• Structure depositions so as to get witnesses to link case to public safety

• Use voir dire to frame case for jurors

• Emphasize the role of the jury as the “conscience of the community.”

• Praise jurors for their good instincts and minimize value of details from trial

• This is an EASY CASE

• Situate plaintiff as one of “us” and defendant as one of “them.”

• Engage in burden shifting, especially in rebuttal.

• Script everything and leave nothing to chance

• Repetition – repetition -- repetition

APPLYING REPTILE THEORY TO LEGAL MALPRACTICE

• We put our complete TRUST in our lawyers.

• A lawyer’s number one job is to protect our rights, property and

money.

• These things are critical to our sense of security.

• A lawyer’s failure to safeguard our interests can be

CATASTROPHIC.

• Therefore, allowing lawyers to get away with sloppiness, laziness

or incompetence is dangerous to all of us.

• We are ALL deserving of top notch advocacy from our lawyers.

Mistakes are NOT ACCEPTABLE.

THE SAFETY RULE

• The rule must be easy to articulate and follow. (bite sized)

• The rule must seem noncontroversial and universal. (public

safety)

• Make the case a referendum on the defendant’s commitment to

safety.

• Tie to role of the jury as conscience of the community

• Pander to “zero risk fallacy” jurors.

• Ratchet up standard of care to “gold standard.”

• Dare defense to conduct risk-benefit analysis.

THE LEGAL MALPRACTICE SAFETY RULE

• Tell the client everything.

• Meet all deadlines.

• Know all the applicable cases.

• Explain all risks and costs up front.

• Don’t make promises you can’t keep.

• Don’t delegate important matters to subordinates.

• Be prepared.

THE SAFETY RULE

Closing Arguments:

“But the rule is that a doctor to treat a patient carefully and skillfully.”

“And when it comes to a … procedure like this, the most important rule … is that you have

to dissect carefully.“

“And that’s the standard that’s going to make doctors as careful as possible and it’s

going to make the world safer.”

“The gold standard in diagnosing coronary artery disease is to do a catheterization and

angiogram.”

“So timely diagnosis and treatment saves lives. … That was [the doctor’s] job here.”

“So one thing you heard in this case was an echocardiogram is the gold standard.

Everyone knows what that means: the gold standard, the best test for diagnosing aortic

stenosis and the degree of aortic stenosis.”

“Jeff's death was clearly preventable if only the hospital had followed its own plan of

care.”

“You put your trust in that doctor…. You trust that doctor to be vigilant and you trust that

doctor to leave no stone unturned to look out for your safety.”

PRIME THE JURORS DURING VOIR DIRE

• Ask jurors to affirm their commitment to public safety

• Ask about making safety a priority

• Ask jurors about circumstances where they felt unsafe

• Connect safety to the facts of the case

• Attempt to identify jurors who feel especially vulnerable

• Strike jurors who are analytical, independent and rules driven.

• Seek jurors who have a strong sense of community and belong

to civic/religious/social organizations.

Availability Heuristic: Jurors will think case is about safety.

VOIR DIRE FOCUS ON SAFETY

Potential Voir Dire Questions:

“Don’t you agree that safety should be the number one priority of any

construction site/hospital/power plant?”

“Do you agree that the main priority of any _______ is to insure the safety of the

people who shop/work/visit there?“

“Isn’t it the responsibility of all of us to try to make our community a safer

place?”

“What kinds of steps have you taken to try to make your

home/workplace/school a safer place?”

“Do you feel less safe than you did even ten year ago?”

Don’t you believe that a company should protect all

customers/workers/patients, regardless of how rich they are?

THIS IS AN EASY CASE

• Allow jurors to economize on effort.

• Decisions made about broad themes

• Instinct and Personal Experience

• First impressions are correct

• Defense counsel then faced with prospect of

• complicating things

• Telling jurors their instincts are poor

• Imposing costs

• Foisting experts on them


CASE 1 Closing Arguments:

“This is in the end, in the final analysis, a very simple case.”

“This is a simple case. Your instinct when you heard just the basic facts – just

those two basic facts – was the right instinct. Nothing you’ve hears in the

evidence over the last three weeks should cause you to question that initial

instinct.”

“But as we do that, what I want to say -- and I don't really know what this

phrase means, but I've heard it a lot: Don't forget to see the forest through the

trees. I think it means don't get lost in the details and remember this is a

simple case.”

“Please don’t think that because this is a simple case that your job is any less

important.”

“You were probably ready to decide this case a week ago or even more than a

week ago but I know you're definitely ready to decide it right now.”



“This is a simple, simple case.”

“It’s really a simple case in the final analysis.”

“Don’t forget to see the fact that this case is simple.”

“This case was simple. And as we go through the evidence, just keep that in

mind. But, because the case is simple don’t think your job as a jury is any less

important. In fact, in a simple case, it’s more important because you are the

conscience of the community.”

“And you were probably ready to decide this case a week ago. I got the sense

from you about that but I know you are ready to decide it now.”

“And as lawyers we follow all these little rabbit holes throughout the trial, and

they really end up not mattering that much, maybe wasting time.”



“Now, you know I've over-simplified this case, but not by much,

right? Because this is a very simple case.”

“Your instinct when you heard just the basic facts and you first

saw the plan of care in the hospital's own record was the right

instinct. And nothing you've heard over the last four weeks of

evidence should cause you to question that.”

USE YOUR COMMON SENSE

Closing Arguments:

“Careful is one of those words that it’s hard to define but you know it when you

see it and you know it when you don’t see it.”

“And they are hard to define in the abstract what it means to be careful, what it

means to be skillful when you are treating a patient. But it’s one of those

things you know it when you see it and you know it when you don’t see it as a

patient or as a person in the community.”

“What does "carefully and skillfully" mean? They're words that are hard to

define in the abstract, but you know it when you see it, and you know it when

you don't see it.”

“I would ask that you keep your eye on the ball in this case and use your

common sense.”

US VS THEM (TMT)

• Plaintiff’s counsel as “ordinary folk.”

• Experts characterized as elites, necessary evil

• Group plaintiff with jurors

• Get close to the jury

• Liberally swap pronouns so as to insert jurors into the case

• Hit the golden rule as hard as possible.

US VS. THEM

Closing Arguments:

“You’ve been sitting here with me.”

“I do have an hour to talk to you and I have this nice screen here which I barely

know how to use, I am going to go through all the evidence that you heard in this

case.

“You put your trust in that doctor…. You trust that doctor to be vigilant and you

trust that doctor to leave no stone unturned to look out for your safety.”

“For instance, don’t make your decision on what you think of me; fat, bald,

frumpy, clumsy, sinister looking, drooped one eye.”

“I'm feeling a little anxious. You may be feeling a little anxious.”

“[T]here are sort of two standards of care in this case. One is going to protect

patients and one is going to protect doctors….”

THE CONSCIENCE OF THE COMMUNITY

• Pander to the jury by elevating them

• Give permission to substitute their judgment for those of

experts, lawyers or judge

• Emphasize the importance of the case

• Imply failure for not standing up for what is right

• Hit the golden rule as hard as possible.


Case 1 Closing Arguments:

“[A]s the jury, you’re the conscience of the community and you say what’s right

and wrong.”

“This requirement for a doctor to be careful … applies to all doctors and we need

to stand up for that idea. This time it was Karla, but it could be anyone with any

kind of doctor.”


“[I]t’s more important because you are the conscience of the community.”

“You say what’s right and what’s wrong. You say what’s acceptable care in this

community and what’s going to be acceptable care in this community. And we

should be able to stand up in a case like this and say, this is not acceptable

medical care. And if you can’t say it in a case like this, when can you say

confidently?”

“And I want you to seize this opportunity, do something important and right in this

case.”



“But, please, because this case is simple, don't think your job as a

jury is any less important because it's actually more important in a

simple case. You're the conscience of the community as you sit as

the jury. You say what's right and what's wrong. You say what's

acceptable care in this community. And we should be able to stand

up in a case like this with this kind of evidence and say confidently

this is not careful and skillful medical treatment. ”

“And I want you to seize this opportunity to do something important

and right in this case, and I'd ask you to respect that with your

verdict.”

THE VULNERABLE REPTILE

• The Reptile Theory is a recipe book

• Therefore it is predictable

• Opposing Counsel is invested in the technique

• Limited ability to adjust on the fly – No “Plan B”

• Plaintiff has to show his hand first

• The key is to recognize a Reptile Opponent in time to

do something about it.

COMBATTING THE REPTILE STRATEGY

1. Prepare your deponents

a) Interrupt the rhythm of opposing counsel

b) Qualify all answers (briefly)

c) Ask counsel to rephrase questions

d) Don’t get flustered

2. Voir Dire: Pick a competing theme and reinforce it in your own voir dire

questions.

a) Causation.

b) Personal responsibility.

c) Uncertainty.

d) Commitment to rule of law

3. Opening Statements: Call your opponent out.

a) Introduce the jury to the REPTILE Theory. Tell them what to expect.

b) Outline the voir dire strategy they just experienced.

c) Counter-prime.

COMBATTING THE REPTILE STRATEGY

4. Remind the jury of their actual responsibilities.

a) Endangering the public is handled in criminal court.

b) Violations of safety regulations are handled through administrative law.

c) There is a place for addressing such issues. This isn’t it.

d) Safety rules appear nowhere in jury instructions or verdict form.

5. When does the jury act as the conscience of the community?

a) Protection against an overzealous prosecutor.

b) Protect citizens from the tyranny of the state.

c) Protect individuals from mob justice.

d) Not in a simple civil case where one party is trying to collect money from

another.

6. Provide a competing narrative that is NOT reactionary to that of the plaintiff.

a) Jurors prefer to have someone to blame, some theory of responsibility.

b) Provide what they need to find one.

c) Humanize the defendant – reverse golden rule.

7. Know the Rules!

Schwartz Reptile ABA 2016

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